Council of State scraps another nitrogen exemption; More construction delays expected

Construction projects may no longer automatically receive permission for the nitrogen they temporarily emit. The Council of State ruled on Wednesday that the construction exemption is not legally tenable. If a construction project results in nitrogen precipitation in a vulnerable nature reserve, it will now require a nature permit. The ruling could have consequences for the entire construction sector, as a nitrogen calculation will have to be made for each project.

The exemption stated that no nature permit was required for the construction or demolition of houses, energy projects, and roads, among other things. But this will be required from now on for construction projects that could cause nitrogen emissions near nature reserves and, therefore, negatively affect them.

The highest general administrative court’s ruling specifically concerned the exemption for the Porthos mega project. This project revolves around storing CO2 from industry in the port of Rotterdam in an empty gas field under the North Sea. Mobilization for Environment (MOB) pointed out that the project causes nitrogen precipitation in protected natural areas. According to the environmental organization, the exemption is not legally correct.

This is not the end of the Porthos project, the Council of State stressed. Specific research is needed into possible nitrogen precipitation during construction. That investigation has already been done, but Porthos submitted it too late in the proceedings. The court, therefore, gave MOB six weeks to consider and respond to the investigation. After that, the Porthos lawsuit will continue.

The Council of State has “drawn a line through one of the Cabinet’s shortcuts,” said Johan Vollenbroek of MOB. According to the activist, the government wanted to use the exemption “to restart permitting without having to take measures to really reduce nitrogen emissions and stop further deterioration of our nature.” Nitrogen emissions have hardly decreased since 2019, VOllenbroek said. “The biggest source, agriculture, has reduced little to nothing.”

The Council of State ruling is dramatic for the construction sector, said the trade association Bouwend Nederland. “With the deletion of the generic construction exemption, the Netherlands will be locked down,” Bouwend Nederland said. Due to the ruling, all construction projects that have not yet been licensed must again apply for an individual environmental permit. “We are back to square one, which will cause enormous delays with all the harmful consequences for home seekers, the energy transition, and the Dutch economy. Everything must now be focused on reducing nitrogen emissions.”

WoningBouwersNL, the trade association for home builders, wants Housing Minister Hugo de Jonge to quickly make clear that construction permits can still be issued following the Council of State ruling. His explanation to the lower governments should prevent a construction freeze.

The ruling states a nature permit is required for construction near vulnerable nature areas. But not if the building isn’t near nature reserves, emphasized director Coen van Rooyen of WoningBouwersNL. And De Jonge has to propagate that to provide clarity. “When a builder can show that the temporary and limited increase in nitrogen during the construction process will not have any significant consequences for nature, it must be clear to all involved parties that the project can be carried out as usual,” said Van Rooyen. “Irrespective of any exemption scheme, this has always been the case.”